The Popi M reminded us that a plaintiff has to prove his case on a balance of probabilities in a civil action and where the court is left in doubt as to whether a vessel was lost by reason of an insured peril the plaintiff cannot succeed. The “ping pong” effect of the shifting burden of proof in such cases has been well demonstrated in recent cases in Queensland. Before looking at those cases it is well to recall the tortuous history of The Popi M, which will long be remembered to those who followed its progress through the courts as the “submarine case”, or in the words of May, L.J., the “yellow submarine which was no more than a red herring”.1

The vessel sank in deep water, in calm weather and in calm seas in the Mediterranean Sea off the coast of Algeria in the course of a voyage from Rouen to Yemen when laden with a cargo of sugar. The crew had abandoned the vessel as a result of a large and sudden entry of water into her engine room, a few hours before the vessel sank. The owners sought to recover under time policies of marine insurance and the underwriters denied that the loss had been occasioned by a peril insured against. The owners were entitled to recover if they could establish that the loss had been caused by “perils of the seas”. At the trial before Bingham, J., the owners advanced as an explanation for the loss a collision with an unidentified moving, submerged submarine which was never detected, never seen and had never surfaced. Although he had regarded such an explanation as being inherently improbable the trial judge held that the owners’ submarine hypothesis must be accepted as, on the balance of probabilities, the explanation for the casualty. Bingham, J., had specifically found that at the time of the sinking the vessel was in a “generally wasted and worn condition”. He was therefore not able to find that at the time of the sinking the vessel was in a seaworthy condition; with the result that the owners could not gain the advantage of the inference which, on the authorities, he could have reached that the loss was proximately caused by a peril of the sea.

On appeal, the Court of Appeal rejected the submarine hypothesis but nevertheless held that the owners were entitled to succeed. The Master of the Rolls seems to have treated the unexplained entry of water into the ship as a peril of the sea, relying upon a dictum of Lord Wright in Canada Rice Mills v. Union Marine and General Insurance 3. That was a case in which it was held that damage to rice carried on board a ship was proximately caused by a peril of the sea, even though it was actually caused by action necessarily and reasonably taken to prevent a peril of the sea affecting the goods. In a paper delivered to the Maritime Law Association of Australia and New Zealand in October 1985 Brian Rayment, Q.C., suggested: